Berwick Selectmen vote down citizen's petition: Would have changed zoning on Rt. 236 from commercial/industrial to residential

Sunday, February 3, 2013

BERWICK, Maine — Selectmen voted 4 to 1 to not send rezoning ordinances for Berwick Iron and Metal Recycling on Route 236 to voters after a petition initiated public hearing Tuesday evening. The petition was signed for a portion of the rural commercial/ industrial zone to be changed to a residential zone.

“I personally found this to be the most difficult decision I’ve had to make since being elected to the Board of Selectmen. I’ve visited the homes of abutting property owners while the shredder was operating and there is no doubt that their quality of life has been negatively impacted. My daughter attends the Vivian Hussey School so I share the concerns expressed about the health of our children and our environment. However, there was clear evidence in our Land Use Ordinance, our Comprehensive Plans dating back to 1967, and in State Law that a zoning change was not the proper or legal means to address the objectionable issues. It is the overriding duty of the Board of Selectmen to adhere to our policies, ordinances and laws and to ensure that they are applied equitably to, and for, all. I sincerely hope that living conditions in the affected neighborhoods can be restored or dramatically improved through the application of other remedies or cooperation between good neighbors, residents and businesses included,” said Bart Haley, Chair of the Berwick Board of Selectmen.

“I don’t understand what the problem is. How are we going to get new business if we drive the ones we already have away? That’s where you wanted commercial business,” said Dana Hall, a Berwick resident opposed to the changes. Residents have brought to the selectmen complaints that the shredder installed at BIMR creates constant noise and air pollution. Bob and Donna Duffy live next door to BIMR and wrote a letter addressing the concerns they deal with on a daily basis.

“We bought a sound meter, and it has recorded the shredder running over 60 decibels, even though we were told it would not go that high. We spent this past summer in our house with the windows closed. The diesel smell is like sitting in traffic surrounded by trailer trucks,” read the Duffy’s letter. The two- hour public hearing gave all residents and business owners a chance to voice their opinion.

“I’m in the middle of buying two pieces of land to grow trees, either in Berwick or Dover. I can move my business to Dover,” said Salmon Falls Landscaping owner, Mark Pendergast. Many at the hearing feared forcing Berwick Iron and Metal to move would hurt the already weakened economy of their town.

“ We need business. Build baby build! We’ve had to build one business at a time and we need to offer our integrity. We cannot afford these schools that are pumping out bills,” said a Portland street resident. Allegations concerning toxic air pollution from BIMR have caused concerns for the Vivian E Hussey Primary School, which is down the street from the business on Blackberry Hill Road.

“I have concerns on what the school students are breathing. We need to rethink what Berwick is about,” said Peg Wheeler. A study was done on estimations regarding the outdoor air impacts at the Hussey School and common air emissions sources. The study done by Amec, an environmental consulting firm reported that BIMR is less harmful in ambient air then the school’s boiler or a home wood stove.

Attorney Timothy Murphy of the Saco law firm Prescott Jamieson Nelson & Murphy LLC filed a rezoning petition with the Town of Berwick .

“What is interesting, they knowingly installed the shredder without a single local permit. Think about those Berwick residents who have been literally prisoners in their own home because the smell is so bad. These are your neighbors that are suffering,” said Murphy. Matthew D. Manahan Attorney represents Berwick Iron and Metal. At the Tuesday night public hearing, Manahan stood up for his clients in rebuttal.

“This would be considered spot zoning, which is illegal. Does it make sense to bring something illegal to the voters? As far as the air quality is concerned, the two pollutants of highest impact are still well below standards at the Hussey School. School buses have impacts that are right about that same level,” said Manahan.

After the public hearing was adjourned, a nonpublic session was called, where the board’s legal rights and responsibilities were discussed with Director of Planning & Town Land Use Attorney, Patrick Venne. Deliberation by the Board of Selectmen occurred after a motion and a second motion was made, which concluded the final vote. The Berwick Board of Selectmen voted 4-1 to refuse insertion of any article relating to the proposed zoning amendment in the Town Meeting warrant on the grounds that the amendment, if enacted, would violate section 12.2.D of Berwick’s Land Use Ordinance and that it further would be invalid if the Maine Law Court upholds the legality of BIMR’s permits.